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Turkey: Constitutional Overhaul?
Gulnur Aybet and Filiz Ba kan

When Turkey went to the polls on June 12, the expected outcome was a third term win for the ruling Islamist-rooted Justice and Development Party (AK Party). However, despite this predictable outcome, the election results have been somewhat of a surprise.

First of all, prime minister Recep Tayyip Erdogan's fifty percent win of overall votes is unprecedented in Turkish politics, as no ruling party has ever increased their vote in a third term. Second, despite this overwhelming victory, the AK Party has ended up with fewer seats in Parliament, due to an outburst of seats won by independent candidates and an increase in the number of seats by the main opposition Republican People's Party (CHP). Democracy is never straightforward, but in Turkey, it plays out in the strangest ways. For the past nine years, ever since the AK Party came to power in 2002, Turkish elections have become colourful turning points in transforming the country's political landscape. Until 2002, Turkey was mostly ruled by a series of unstable coalitions with the sporadic interference of military coups. Therefore, in the period prior to and after the AK Party's accession to power, Turkey's road to a fully fledged democracy has been bumpy at best. Turkey's democratisation becomes even more critical as the country is in the midst of accession negotiations for full membership in the European Union (EU). The most significant outcome of these elections is the expected change to the existing constitution - drafted in 1982 by the generals who carried out the 1980 coup. However, everyone in Turkey seems have their own vision of a new constitution; not least Erdogan himself, who envisions the introduction of a powerful presidential system guaranteeing his hold on power for the next two decades.

With an economy growing at a faster rate than ever before, a stalled EU accession process, a transition from old checks and balances in the political system (such as the military's power) to new ones (such as democratic consolidation and the rise of single party power politics), Turkey's pace of change is almost bewildering. It is no wonder that for almost a decade, the AK Party's two consecutive terms have been rife with controversies from the beginning. Yet, despite a core coming from Islamist roots, the AK Party bases its support around a group of moderate Islamists, the influential religious-based Gülen movement, Turkish liberals mainly from the business community and former left wing activists eager to see a diminished role for the military. The AK Party with its commitment to political reform, liberalism, free market economics and democratic consolidation, including a reduction in the role of the military in politics, has been a champion for these diverse groups who would like to see these changes in pace.

Although this development was originally bolstered by plans for EU accession, the EU-driven reform process has lost its zest since the start of the second term in 2007. The main reason for this could be the series of setbacks that the AK Party experienced which diluted its focus away from the EU, from the so-called 'e-coup' of 2007 to the party closure case in 2008. The 'e-coup' was the posting of a statement on the Turkish General Staff 's website warning about the dangers posed to the secular principles of the state should Abdullah Gül be appointed as president from the ranks of the AK Party. In the present system, the Turkish presidency is a constitutional role with substantive powers, which is unusual in parliamentary systems, and has been traditionally affiliated with the secular nature of the Turkish state. This would explain the controversy surrounding President Gül's appointment in 2007. In 2008, following his election for a second term, Erdogan introduced some constitutional amendments permitting the wearing of the headscarf in state institutions. This led the Constitutional Court to open a party closure case against the AK Party on the grounds of endangering the secular nature of the Republic. Offices like the Constitutional Court, which hold power over political parties due to the nature of the present constitution, have been part of the traditional secular elite. These mechanisms have provided checks and balances to limit the power of political parties in the Turkish political system. Although the court ultimately narrowly voted in favour of not closing the party and allowing the government to function, these setbacks proved that any amendment to the existing constitution would meet with resistance.

Therefore during the first two terms of the AK Party, any move towards amending the existing constitution meant taking one step forward and two steps back. Yet when the AK Party called for a referendum in September 2010 to amend parts of the constitution, it won by an overall vote of 58 percent. This was significant because the main opposition parties had campaigned for a 'no' vote to the amendments and the main Kurdish party had called for the boycott of the referendum. The amendments proposed changes to the appointment process of high judges and prosecutors but did not go further than that.

What is most significant about the results of the elections on June 12 is an expected major overhaul to the existing constitution, rather than these piecemeal attempts to alter it since 2002. However, the AK Party has not managed to get the required minimum 330 seats to adopt a new constitution without the support of the opposition and other political parties. Before the election, there were concerns that Turkey could be heading for a majoritarian constitution, not a consensual one. To have a majoritarian constitution, the AK Party needed 367 seats in the parliament. This meant that they could push through constitutional reform on their terms, including Erdogan's presidential model, without the support of opposition parties. Another way in which the AK Party could have had a majoritarian constitution is if it had won 330 seats in Parliament, which would have enabled it to hold a referendum for constitutional change. But despite the high percentage of the overall vote, the AK Party ended up with less seats than in 2007 (326 seats with a fifty percent win of the overall vote compared to 341 seats with a 46 percent win of the overall vote in 2007). The reason for the AK Party's loss of seats in Parliament, despite the unprecedented electoral victory, is due to what is now being referred to as the 'explosion of the ten percent threshold'. This is a rule which prohibits political parties with less than ten percent of the overall vote to enter MPs into Parliament. The Kurdish Peace and Democracy Party (BDP) has circumvented this rule twice, in 2007 and in 2011, by entering its MPs into the elections as independent candidates. However, this time it increased its number of seats in Parliament to an unprecedented 36. Coupled with the opposition CHP's increase in number of seats from 112 to 135, the AK Party lost its majoritarian hold on Parliament, ironically after winning an unprecedented number of votes.

These results show that new checks and balances in the political system are emerging. Some segments of Turkish society had concerns that Turkey was becoming a half-way house between jettisoning old checks and balances like the military and the deep state without having new ones in place, thus leaving unprecedented power in the hands of a single party. But it seems that democracy works in strange ways. The independent candidates have unexpectedly become the new check and balance factor in the outcome of this election.

Was this achieved because Erdogan left the 'eastern vote' to the BDP, as some speculated during the announcement of AK Party candidates unlikely to win votes in the troubled region? Instead, Erdogan turned to court the nationalist vote during the elections rather than the Kurdish one, by attempting to steal votes away from the mainstream nationalist party, the National Action Party (MHP), by adopting a far tougher nationalist discourse than before. Close to election time, the interference of the High Election Board prohibited some BDP MPs from running and further stirred enmity between the BDP and the AK Party. But the BDP's unprecedented success in getting 36 seats for its independent candidates was not foreseen.

The result is that the AK Party is not in a position to push for a majoritarian constitution, and there is now a genuine chance for Turkey to have a new consensual constitution. This was reaffirmed by Erdogan's victory speech on the eve of the election results, calling for conciliation and cooperation among the opposition parties, parties not represented in Parliament, civil society movements and academics, in order to work towards a new constitution together. This is a much better outcome than a majoritarian constitution. Although different segments of society in Turkey would have liked to see the back of the 1982 constitution drafted by the generals (hence the 58 percent 'yes' vote in the September 2010 referendum), there were concerns about accepting a constitution drafted by the AK Party without the input of all civil society groups and political parties. The AK Party's win of 326 seats just below the 330 threshold has ensured that this will not happen.

The election results present an exciting opportunity for Turkey to prepare for a consensual constitution, something it has never done before. This is because, in Turkey, new constitutions are normally drafted and adopted by a constituent assembly, which prevents the amendment and modification of the constitution through normal legislative practices. But all previous Turkish constituent assemblies have always been formed in the aftermath of a military coup. There are no existing mechanisms for the making of a consensual constitution, and this will be the first time that one will be formed under democratic circumstances. In order to have a consensual constitution, a new constituent assembly will have to be based on the full participation of all sectors of society, rather than the support of a temporary majority of one political party. This is not likely to be a straightforward process because of the lingering polarisation between secular and religious groups, and between Kurdish nationalists and Turkish nationalists. But there is no turning back, and this is certainly a major turning point for Turkey.

(Gülnur Aybet is a Senior Lecturer at the University of Kent, England, and a Professor at the Izmir University of Economics, Turkey. and Filiz Ba_kan is an Associate Professor at the Izmir University of Economics.)